Shackleton v Police
[2020] NZHC 384
•5 March 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000108
[2020] NZHC 384
BETWEEN MICHAEL SCOTT SHACKLETON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 February 2020 Appearances:
Appellant in person
A Harvey for Respondent
Judgment:
5 March 2020
JUDGMENT OF OSBORNE J
(on appeal)
This judgment was delivered by me on 5 March 2020 at 2.30 pm Registrar/Deputy Registrar
Date:
SHACKLETON v POLICE [2020] NZHC 384 [5 March 2020]
[1] Michael Shackleton was served with infringement notices for offences said to have occurred on 22 May 2017, being:
(a)operating a heavy motor vehicle at a speed exceeding 90 km/h (the allegation being 123 km/h); and
(b)operating a heavy road user charges (RUC) vehicle on a road where the reading of the distance recorder fitted to the vehicle exceeded the maximum reading specified in the distance licence for the vehicle by more than 500 km (the allegation being that the excess was 4,138 km).
[2] The vehicle Mr Shackleton was driving was a Dodge Ram, which has a gross vehicle mass of 4,000 kg.
[3] Mr Shackleton pleaded not guilty. After it became apparent that a prompt hearing was unavailable in the District Court at Westport, the proceeding was transferred to Christchurch for hearing.
The formal proof judgment
[4] Judge W K Hastings, on a formal proof hearing on 2 August 2018, found both infringements proved (the formal proof judgment). His Honour imposed fines of $300 for the speeding offence and $1,000 for the RUC offence.1 Mr Shackleton had not appeared at the hearing.
[5] Mr Shackleton applied for a rehearing. He stated as his grounds for rehearing that the District Court had sent the notice of the 2 August 2018 hearing date to him at an incorrect address. The notice was sent to an address in Tucson Place in Christchurch. With his application for rehearing, Mr Shackleton attached evidence that his residential address was elsewhere. In his application, Mr Shackleton also referred to previous email correspondence he had with the District Court in July- August 2017 outlining his (substantive) issues with the infringement notices. He
1 Police v Shackleton [2019] NZDC 16893.
ticked the “yes” box in the District Court standard form on notice of application which asked whether the applicant requests an oral hearing.
[6] The prosecutor filed a three-page written submission. There is no evidence that Mr Shackleton was informed of his right to reply to that submission or that the Court was proceeding to deal with his application on the papers.
The rehearing judgment
[7] Judge Hastings dealt with the application for rehearing on 29 November 2018 on the papers (the rehearing judgment).2
[8] In the rehearing judgment, the Judge identified that Mr Shackleton’s ground of application was that the notice of hearing had been sent to the wrong address.
[9] His Honour then set out s 177 of the Act and referred to authority in relation to the test of “miscarriage of justice” adopted in relation to rehearings.
[10] His Honour then considered the application, before dismissing it. His Honour stated:
[7] Mr Shackleton wished to be heard in the Westport District Court. However, given the number of sitting days in Westport and the low priority of Mr Shackleton’s infringement offences his hearing was delayed on a number of occasions.
[8] On 12 June 2018 Mr Shackleton confirmed through email the new hearing date of 2 August 2018 in the Christchurch District Court. Although the notice of hearing was sent to the incorrect address, it appears from this communication that Mr Shackleton was in fact aware of the hearing date and location.
[9] A hearing was held on the 2 August 2018 and Mr Shackleton found guilty by way of formal proof. These offences are strict liability.
[10] In the circumstances, I am of the view that no miscarriage of justice occurred. While there was an irregularity of procedure in the sending of the notice of hearing to the incorrect address, this irregularity cannot be considered so serious or fatal as to have affected the trial outcome or to have resulted in an unfair trial, particularly as these are strict liability offences to
2 Shackleton v Police [2018] NZDC 24667. This was a hearing on the papers pursuant to s 125(6) Criminal Procedure Act 2011.
which his response provides no defence, and the court record indicates that Mr Shackleton knew of and consented to the date of 2 August 2018.
[11]For these reasons, the application for a rehearing is dismissed.
The appeal
[11] Upon receipt of the formal proof judgment, Mr Shackleton filed an appeal. As his grounds of appeal, he stated that he had not been advised of court dates to attend “as attached documentation shows”. The documents he attached to his notice of appeal included:
(a)copies of correspondence between himself and the District Court Registries in relation to hearing dates and venue;
(b)a “to whom it may concern” letter of 7 June 2018 (provided to the Court) setting out his explanations for defences in relation to the two infringement notices; and
(c)evidence of his correct residential address.
Appeal hearing
[12] For this hearing, Mr Harvey for the Police filed and served a written synopsis of submissions. Mr Shackleton did not file written submissions but orally addressed the Court.
[13] Mr Shackleton indicated that, in coming to this Court on his appeal, he wished to have resolved in this Court not only whether there should be a rehearing but, if so, the rehearing of the infringement offences themselves.
[14] I heard submissions from both Mr Shackleton and Mr Harvey against the background of two substantive or procedural “corrections”.
The operative provision for the rehearing
[15] The Judge in the rehearing judgment proceeded on the basis that s 177 of the Criminal Procedure Act 2011 applied.3 As Mr Harvey responsibly identified, it did not. Section 125 of the Act provides for rehearings (or retrials) in the situation where a defendant (as here) has been found guilty or sentenced in their absence.
The speeding offence
[16] The speeding infringement notice contained the allegation that it was a “heavy motor vehicle” which Mr Shackleton was operating. The term “heavy motor vehicle” is however defined in s 2 Land Transport Act 1998 in this way:
… heavy motor vehicle means a motor vehicle (other than a motorcar that is not used, kept, or available for the carriage of passengers for hire or reward) having a gross vehicle mass exceeding 3 500 kg
[17] While what is effectively a double-negative in that definition creates a difficulty in the immediate comprehension of the definition, I find that the definition means that Mr Shackleton’s Dodge Ram was not a “heavy motor vehicle” despite it weighing more than 3,500 kg. That is because a motor car does not come to be treated as a “heavy motor vehicle” simply because it weighs more than 3,500 kg unless it is “used, kept, or available for the carriage of passengers for hire or reward”.
[18] As this was not a matter raised in Mr Shackleton’s grounds of appeal, I raised it at the hearing. Mr Harvey’s submission was that the meaning of the definition is less than clear but he was unable to refer to any reasoning which cuts across the construction I have identified.
The application for rehearing
Section 125 Criminal Procedure Act
[19] Mr Shackleton was entitled to apply to the District Court for an order granting a rehearing.4 His application met the procedural requirements under s 125 of the Act.
3 Shackleton v Police, above n 2, at [8].
4 Criminal Procedure Act 2011, s 125(1).
[20] Mr Shackleton’s first ground of application was that he had not been notified of the hearing date.
[21] Upon the rehearing, the District Court had power to order a retrial if satisfied of certain matters under s 125(7) of the Act but Mr Shackleton’s grounds of appeal brought into play the provisions of s 125(8) which provides:
Despite subsection (7), the court must order a retrial if satisfied that the defendant was not notified of the trial.
The process of notification
[22] After Mr Shackleton had been served with the notices, there was difficulty in obtaining a prompt hearing in the District Court at Westport which led to discussion of a transfer to Christchurch (Mr Shackleton was based in Christchurch, not Westport).
[23] The Court Registry Officer wrote to Mr Shackleton by email on 12 June 2018 discussing the possibility of transfer. She recorded:
Currently there are hearing dates in Christchurch on the 12th of July, 2nd of August and the 23rd of August. Westport’s next date would be towards the end of August or September.
Does any of this information change your mind about appearing on Thursday? It is your absolute right to appear, I am just concerned that you will spend your money and not get your hearing.
[24] On the same day, Mr Shackleton replied by email (he informs me it was an email which he dictated to his wife), stating:
Hi Lisa
Confirm the change of date and venue as discussed at this stage. 2nd August.
Regards
Michael Shackleton
[25] On the day of the email exchange, 14 June 2018, the Court Registry Officer addressed a letter to Mr Shackleton confirming that the date of hearing of the charges was 2 August 2018 and would be at the Christchurch District Court. The letter was
addressed to an address which the evidence establishes was not Mr Shackleton’s address. Mr Shackleton states, and I accept, that he did not receive the original of that letter.
Discussion
[26] The issue is whether the District Court Judge ought to have been satisfied that Mr Shackleton was not notified of the trial.
[27] In the Court below and in this Court the Police submitted that the email exchange between the Court and Mr Shackleton on 14 June 2018 meant that Mr Shackleton had been notified of the date and place of hearing.
[28] I asked Mr Shackleton why he did not view the email exchange as a clear setting of the date of 2 August. He explained that the intention of the email (as he had dictated it to his wife) was, having decided that the 2 August 2018 date would potentially work for him, to ask the Officer to confirm that date. Hence the directory words “Confirm the change of date and venue” (my emphasis) rather than “I confirm the change of date and venue …”.
[29] In the way the exchange took place, and having regard to the whole of Mr Shackleton’s 12 June 2018 email, I cannot reach a conclusion that the District Court should have been satisfied (under s 125(8) of the Act) that Mr Shackleton had not been notified of the hearing date. The natural reading of Mr Shackleton’s email (despite the degree of short-hand) is that Mr Shackleton was confirming acceptance of the 2 August date.
[30] Accordingly, the Judge would have had the power under s 125(7) of the Act to conduct a rehearing of the charges if satisfied of the threshold tests in that subsection.
[31] One of those threshold tests involves a consideration of the merits of a defendant’s defence. At this point, it is appropriate to turn to the two alleged infringements and matters of defence.
The speeding charge
[32] The matters of potential defence on Mr Shackleton’s part are limited to two, namely:
(a)his challenge to the speed at which he was alleged to be traveling; and
(b)(as raised by this Court) the fact that he was not travelling in a heavy motor vehicle.
[33] For the initial hearing, the Police in fact produced clear evidence as to Mr Shackleton having travelled at 123 km/h. Constable Shane Thomson gave evidence as to his own certification and as to the certification of the speed detection equipment. He gave evidence of activating his radar and locking Mr Shackleton’s vehicle’s speed at 123 km/h. He stated that when he approached Mr Shackleton and asked him if he knew what speed he was driving at, Mr Shackleton replied “I don’t know what I was doing”.
[34] In subsequent correspondence, Mr Shackleton raised three particular matters. I will deal with those in turn.
[35] First, the officer had informed him that the speed limit for his vehicle was 90 km/h. It had “mystified” Mr Shackleton that the officer identified a 90 km/h limit. I am satisfied by reason of the definition of “heavy motor vehicle” to which I have referred above that the permitted speed of Mr Shackleton’s vehicle was in fact 100 km/h, leaving his speed (if 123 km/h) still 23 km/h in excess of the limit for that vehicle.
[36] Secondly, Mr Shackleton explained that he was asked how fast he thought he was going. He replied that he was not sure, he had just overtaken two trucks and a campervan which he believed to be travelling at 70 km/h. Mr Shackleton’s belief as to the speed at which other vehicles were travelling when he overtook them, and in particular his extrapolation as to what speed he may have been travelling, was inherently unreliable and, by reason of the very nature of overtaking, carried with it the real possibility of excess speed.
[37] Thirdly, Mr Shackleton referred in correspondence to realising that his GPS has a “factory set” which beeps at 120 km/h. He took it from the fact that the beeping had not activated that he was not travelling as fast as 120 km/h. Again, in the absence of evidence of the auditing of such a device, the fact that the device did not beep counts for nothing.
[38] I am satisfied that none of the matters raised by Mr Shackleton in relation to the speed at which he was travelling cast any reasonable doubt on the police evidence that his vehicle was travelling at 123 km/h.
[39] Therefore, had the infringement notice been laid or substituted as an offence of operating a motor vehicle on a road at a speed exceeding 100 km/h, Mr Shackleton would have had no reasonable prospect of success if he had attended the hearing.
[40]I return to the consequence of that below.
Road user charges
[41] Constable Thomson inspected the RUC label at the time he stopped Mr Shackleton’s vehicle. The end-mileage from the RUC label was 85,772 km whereas the reading on the vehicle’s odometer was 89,910 km, being an over-run of 4,138 km.
[42] Constable Thomson stated that when he informed Mr Shackleton of the RUC over-run and asked if he had purchased more, Mr Shackleton stated “we would have got more I am sure”.
[43] Before me, Mr Shackleton confirmed that he had subsequently paid the “over- run” RUC.
[44] As he explained in correspondence to the District Court he considers that he ought not to have been served with an RUC offence because of his subsequent payment of arrears. He explained “so retrospectively no offence has occurred”.
[45] Mr Shackleton maintained that position in his submissions to me, displaying a seeming inability to understand that, when legislation requires payment to be made in
advance of a service or event, the payment must be so made. Failing that, associated infringement consequences may follow.
[46]Mr Shackleton had no prospect of successfully defending the RUC offence.
[47] In his submissions to this Court, however, Mr Shackleton focused also on the level of fine imposed in the District Court, namely $1,000.
[48] The prosecutor in the District Court had in his written submissions stated that “the RUC fine of $1,000 is a mandated fine. There is no discretion.”
[49] I infer that the prosecutor’s reference to a mandated fine of $1,000 derives from sch 2 of the Road User Charges (Infringement Offences) Regulations 2012. That schedule provides:
[50] To understand the relevance of that schedule, one must work through the Road User Charges Act 2012 and the Regulations.
[51] The offence with which Mr Shackleton was served is created by s 10 of the Road User Charges Act 2012. Section 10(2) provides:
A person commits an offence if the person operates a RUC vehicle on a road where the reading of the distance recorder fitted to the vehicle exceeds the maximum reading specified in the distance licence for the vehicle by more than 500 kilometres.
[52]Section 10(3) of the Road User Charges Act provides for maximum penalties:
A person who commits an offence against subsection (2) is liable on conviction,—
(a)in the case of an individual, to a fine not exceeding $3,000:
(b)in the case of a body corporate, to a fine not exceeding $15,000.
[53] The Act draws a distinction between a “heavy RUC vehicle” and a “light RUC vehicle”. The term “heavy RUC vehicle” is defined in s 5 of the Act to mean a motor vehicle or trailer with a gross vehicle mass of more than 3,500 kg. The definition of “heavy RUC vehicle” in the Road User Charges Act does not have the exception in relation to “cars not for hire” as found in the Land Transport Act (above at [16]).
[54] The Road User Charges (Infringement Offences) Regulations 2012 provide for infringement fees in relation to offences against sections of the Act. Regulation 4(2) deals with offences against s 10(2) thus:
An offence against section 10(2) of the Act is an infringement offence against the Act for which the infringement fee is,—
(a)for an offence involving a light RUC vehicle, $200:
(b)for an offence involving a heavy RUC vehicle, the fee specified in the second column of Schedule 2 that relates to the amount of distance by which the distance reading for the vehicle exceeds the maximum reading specified on the distance licence for the vehicle.
[55] As the vehicle Mr Shackleton was driving weighed more than 3,500 kg, the applicable “infringement fee” under sch 2 of the Road User Charges (Infringement Offences) Regulations was $1,000.
[56] One cannot discern from the brief formal proof judgment whether the Judge was alert to the fact that the Court (notwithstanding the provisions of the Road User Charges (Infringement Offences) Regulations) retains a discretion in relation to the level of the RUC fine. What is clear, however, is that the prosecutor understood that to be the “mandated fine” with “no discretion” and submitted so in those terms.
[57] As a matter of law, the District Court ought to have proceeded upon the basis that the regime of fixed infringement fees was irrelevant. Mander J in Payne v Police
undertook a detailed review of infringement offences and fixed infringement fees.5 The review was in relation to the Summary Proceedings Act 1957 but is equally applicable to the RUC legislation. His Honour found:6
It is apparent from the case law that where an infringement offence passes out of the administrative procedure and into the Court either by the enforcement authority electing to proceed summarily, or by the defendant requiring the matter to be heard by the Court, a fixed infringement fee becomes redundant. The matter is able to be dealt with by the Court in the usual judicial manner and the normal principles of sentencing can be expected to apply.
[58] In Williamson v Police, this Court heard an appeal against a fine under the RUC legislation itself. 7 Heath J applied the decision in Payne to the RUC case before him, stating:
[8] I have considered a judgment given by Mander J, in Payne v New Zealand Police. In that decision, the Judge made it clear that once the question of infringement was before the Court an approach to imposition of penalty should be adopted that proceeds on ordinary principles of sentencing. That enables me to take account of the personal mitigating factor arising from the problem involving dyslexia, and the relatively small number of kilometres over the limit that gave rise to the $600 infringement fee.
(footnotes omitted)
[59] I respectfully adopt the reasoning and conclusions in these two cases as establishing that the Court has a discretion when sentencing for RUC offences such as that which Mr Shackleton faced.
[60] I find there to have been, in terms of s 125(7)(b) Criminal Procedure Act, a matter of defence available to Mr Shackleton in the context of the fine he faced, namely that he would have been entitled to invoke the Court’s discretion to impose other than the standard “infringement fee”. He did not have that opportunity.
[61] The appropriate outcome in relation to the infringement notice under the RUC legislation requires this Court on appeal to view Mr Shackleton’s case very much as a case on its own facts. At the appeal hearing, it was clear that he had spent significant
5 Payne v Police [2014] NZHC 328.
6 At [33].
7 Williamson v Police [2016] NZHC 2291.
and conscientious effort to understand the relevant provisions of the RUC legislation, arriving at the conclusion that (contrary to the prosecutor’s submission to the District Court) there had in fact remained in that Court a discretion.
[62] While Mr Shackleton’s grounds for seeking substantial clemency as a matter of discretion would have been slim when this matter was first before the District Court at Westport in 2018, this Court (when now required to consider the rehearing of the alleged offences) cannot appropriately ignore Mr Shackleton’s necessary engagement with the complex provisions of the legislation, stemming from an incorrect prosecutorial submission as to a lack of discretion.
Determination on the merits
[63] Mr Shackleton, as I recorded earlier in this judgment, seeks finality in relation to this proceeding.
[64] In relation to the speeding infringement, it is clear that had it come to light in the course of the District Court hearings that Mr Shackleton’s vehicle had been incorrectly categorised as a heavy motor vehicle, the Judge appropriately could have amended the infringement to one under cl 5.1 Land Transport (Road User) Rule 2004 of operating a motor vehicle on a road at a speed exceeding 100 km/h. Mr Shackleton would appropriately have then been found guilty upon the basis that he had exceeded that limit by 23 km/h.
[65] The appeal against the failure to grant a rehearing will be allowed, the infringement notice will be amended and a fine of $200 (instead of $300) imposed.8
[66] On the infringement under the RUC legislation, the appeal will also be allowed, and by way of rehearing the infringement confirmed but a fine of $500 substituted for the previous $1,000 fine.
8 Land Transport (Offences and Penalties) Regulations 1999, sch 1B, pt 2.
Orders
[67]I order:
(a)the appeal against the District Court’s dismissal of the appellant’s application for a rehearing is allowed;
(b)the infringement notice numbered 3799541 is amended (in “details of the offence”) to read “did operate a motor vehicle on a road at a speed exceeding 100 km/h”;
(c)the fine of $300 under the infringement notice numbered 3799541 is quashed;
(d)a fine of $200 is imposed instead; and
(e)the fine of $1,000 under the infringement notice numbered 3799542 is quashed and the appellant is instead fined $500.
Osborne J
Solicitors:
Crown Solicitor, Christchurch Copy to: M S Shackleton
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